Those Crazy Conservative Activists Again

Yesterday's California Supreme Court ruling, relying on the California state constitution to find unconstitutional the exclusion of gays from the California institution of marriage, is already being (predictably) misunderstood and mischaracterized. For an excellent summary of the opinion and a debunking of the fallacious attacks against it, check out Glenn Greenwald.

Probably the most common charge being leveled against the California court is that its judges were "activist," and thwarted the will of the people, or usurped the role of the legislature, or both. I find these vague charges of judicial activism tiresome: they're raised only when courts reach outcomes the people howling "Activists!" don't like. And the "Activist!" charges ignore the excruciatingly obvious, fundamental fact that when a court in a democracy interprets a constitution, the court is *supposed to* overturn laws enacted by the people or their representatives if those laws violate the constitution. The will of the people, or the laws of the legislature, prevail in a democracy subject to the constitution. So if you don't want "activist" judges overturning popular laws, you might as well get rid of the constitution itself, which is designed and intended precisely to place limits on how the people and the legislature can express their wills.

If the point above doesn't make sense to you, think of how the Supreme Court Justices in Brown v Board of Education overturned the "separate but equal" segregated educational framework that had been enacted with popular backing by the duly elected representatives of so many southern states. If you want to argue that courts shouldn't as a matter of principal overturn laws they find violative of their constitutions, you should be prepared to argue that the Brown court, too, exceeded its authority.

In fact, anyone who wants to argue that gay marriage should be left to individual states (and remember, the California ruling was by a state court, pursuant to a state constitution, and binding only in California), you should be prepared to argue too that Brown was wrongly decided -- that "separate but equal" education did not violate the Constitution's 14th Amendment guarantee of equal protection of the laws and should have been a matter for individual states to decide for themselves. I don't see how you can rationally argue that "separate but equal" education was unconstitutional and was rightly struck down by a court as such, but that "separate but equal" marriage (or no gay marriage at all) is constitutional and should be left to states to decide.

You might have surmised by now that I'm not impressed by the notion that gays should be able to form "civil unions" equivalent in all ways but name to marriage (this was key to the California court's finding -- that there is, after all, a great deal in a name). I'd be equally impressed by the notion that blacks should be permitted to attend institutions of higher education as long as the institutions they were permitted to attend were not called "colleges" or "universities."

Here's a little thought experiment to clarify things. Today's Wall Street Journal has an entirely predictable editorial, "Gay Marriage Returns," lamenting the California court's ruling. Let's see how the editorial reads if we replace references to "gay marriage" throughout with references to "black-white intermarriage," instead. If you can distinguish the rights of blacks and whites to marry each other from the rights of gays to marry each other, I'd like to hear the argument (and note that the California court cited Perez v Sharp, where in 1948 the California court struck down black-white marriage bans on 14th Amendment equal protection grounds).

Just when the news was filling with stories about a Republican Party gasping for air, along comes the California Supreme Court's 4-3 decision yesterday legislating black-white intermarriage. The GOP certainly hasn't done anything to deserve such luck...

California's Supreme Court is not the law of the land, but its 4-3 ruling, titled "In re Marriage Cases" for six consolidated appeals, explicitly told both the state's voters and its elected legislature to get lost. Back in 2000, California voters by 61% approved a proposition asserting that the state could only recognize a "marriage" between a white man and a white woman or a black man and black woman...

While the popular spin on these black-white intermarriage rulings holds that this is an all-or-nothing war between Democrats and Republicans, nothing could be further from the truth. Absent an occasional burst of judicial fiat such as this, the American people have been conducting an admirable exercise in democratic discovery about black-white intermarriage.

While 27 states have passed constitutional amendments banning black-white intermarriage, reflecting what opinion polls show to be overwhelming public sentiment, most Americans do not want the U.S. Constitution amended to prohibit black-white intermarriage. Back in 2004, some 52% of Bush voters favored black-white unions stopping short of a "marriage" designation. This was also Mr. Bush's position.

In other words, the American people, rather than simply shunning the desire of some blacks and whites to marry each other, are clearly willing to take up the matter and work it through their legislatures. California's legislature has passed bills twice to authorize black-white intermarriage; both were vetoed by Governor Arnold Schwarzenegger. If California can find a Governor willing to sign off, so be it. It is preposterous, though, to let four judges decide this for a state of more than 36 million diverse individuals.

Most of all, the black community wants social acceptance. It should look to what flowed from Roe v. Wade: unending bitterness. A wiser course in 21st-century America is to trust the democratic process.

If you don't think denying gays access to marriage denies them equal protection of the laws, you must also think such a denial would be constitutional with regard to blacks or other minorities. Do you?

Ultimately, opponents of gay marriage seek to legislate based not on logic, but on the peculiarities of their own preferences. They're guided not by the consistent application of law, but by the fickle idiosyncrasies of their own taste. Rather than reaching outcomes through the application of principle, they seek to conjure principles to support outcomes at which they have already comfortably arrived. And, with the usual unintended irony, they then accuse their opponents of "judicial activism." If it weren't so sad, it would be hilarious.